Craig v. Dean

441 S.W.2d 572, 1969 Tex. App. LEXIS 2405

• Court: Court of Appeals of Texas
• Decided: March 31, 1969
• Docket: No. 7923
• Status: Published

Opinions

NORTHCUTT, Justice.

For convenience we adopt the statement of the nature of the case as stated by appellants.

“This appeal is from a summary judgment based upon the statute of limitations. The note sued upon is dated April 24, 1959, due within three years after date, payable to Mae H. Dean by her son, William H. Dean. Mae H. Dean died February 8, 1962. Her will appointed her two daughters and her son, William H. Dean, as Independent Executors of the will. The will was admitted to probate on February 26, 1962. Appellants, the two daughters of Mae H. Dean, qualified as Executrixes on the 26th and 28th of February, 1962. Appellants had no knowledge whatever of the note sued upon herein and did not know that it existed until in August of 1964, at which time a bank in Panhandle, Texas, discovered the note among its records concerning Mae H. Dean and delivered it to the appellants. Suit on this note was instituted by appellants in May of 1966. The District Judge granted appellee a summary judgment stating ‘there is no genuine issue as to any material and ultimate fact in that the note sued upon and which is the basis of plaintiff’s (appellant’s) cause of action is barred by limitations.’ ”

Appellants present this appeal upon one point of error contending the court erred in holding the note sued upon was barred by limitations. Suit upon the note in question was not brought for several days after four years from due date of the note. Appellants had the note in their possession long before the four year statute of limitations applied.

Art. 5527, Vernon’s Ann.Texas Civil Statutes, provides:

“There shall be commenced and prosecuted within four years after the cause of action shall have accrued, and not afterwards, all actions or suits in court of the following description :

1. actions for debt where the indebtedness is evidenced by or founded upon any contract in writing.”

It is stated in Atkins v. Crosland, Tex., 417 S.W.2d 150 by the Supreme Court as follows: "We must first determine when the plaintiff’s cause of action accrued, for it is at that time that the two year statute of limitations began to run.”

In 37 Tex.Jur.2d, P. 235, Sec. 88, it is provided:

“An action on a negotiable instrument must be brought within four years from the time that the cause of action accrues. Thus, where the date of maturity is specified, the action must be brought within the prescribed period thereafter.”

There is no dispute as to the suit not being brought within four years after the due date of the note. We hold the trial court was correct in holding the cause of action was barred by the statute of limitations. The judgment of the trial court is affirmed.

DENTON, C. J., concurs in result.